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Can the FBI Secretly Track Your Cell Phone?

The Justice Department is poised this week to publicly defend a little-known law-enforcement practice that critics say may be the "sleeper" privacy issue of the 21st century: the collection of cell-phone "tracking" records that identify the physical locations where the phones have been.

It may come as a surprise to most of the owners of the country's 277 million cell phones, but their cell-phone company retains records of where their device has been at all times—either because the phones have tiny GPS devices embedded inside or because each phone call is routed through towers that can be used to pinpoint the phones' location to within areas as small as a few hundred feet.

Such location "logs" never show up on your monthly cell-phone bill. But federal court records filed over the past year indicate that federal prosecutors and the FBI have increasingly been obtaining such records in the course of criminal investigations—without any notice to the cell-phone customer or any showing of "probable cause" that tracking the physical location of the phone will turn up evidence of an actual crime.

"Most people don't understand they are carrying a tracking device in their pockets," says Kevin Bankston, a lawyer with the Electronic Frontier Foundation, a privacy group that has been trying to monitor the Justice Department's practice.

Much about the practice—including how many "tracking" records have been collected by the government—remains shrouded in secrecy. But in one court case in which the use of such records arose, a Philadelphia FBI agent named William Shute testified that he had obtained such records 150 times in recent years in order to track the location of federal fugitives.

It also briefly became an issue in last year's New Jersey gubernatorial race when the ACLU obtained records showing that, as U.S. attorney, Republican candidate (and now governor) Chris Christie had acquired such records 79 times without judicial warrants. (Christie called criticism of the practice "overblown hyperbole.")

This week, the constitutionality of the Justice Department's method of acquiring such records will be argued in federal court for the first time.

A panel of three federal judges in Philadelphia on Friday is due to hear oral arguments in a landmark case in which Bankston's group and the ACLU are contending that the Justice Department's cell-phone tracking practice raises profound "privacy" issues under the Fourth Amendment to the Constitution. The groups contend the Justice Department should be required to first obtain the equivalent of search warrants from federal judges in which they would have to establish "probable cause" that the records will actually yield evidence of a federal crime.

Currently, the records are obtained under what are known as "2703(d)" orders—a reference to an obscure provision of a federal law known as the Stored Communications Act—in which prosecutors only need to assert that there are "reasonable grounds" to believe the records are "relevant" to an ongoing federal criminal investigation, a much lower standard that that needed for a search warrant.

The case arose because a federal magistrate in a drug case in Philadelphia refused to grant an order to turn over cell-phone tracking records of one subject, making the magistrate (and a handful of other magistrates and federal judges who have issued similar rulings in recent years) something of a hero to privacy advocates.

But the Justice Department is appealing, contending in a brief that the concerns of its privacy critics are "outlandish" and overblown. The thrust of the department's argument: cell-phone tracking records are "routine business records" that contain "non content" data and are therefore "unprotected" under the Fourth Amendment of the Constitution. The idea that the government's acquisition of records might lead to "dragnet surveillance"—as the critics claim—is an "absurdity," states one of the Justice Department's briefs in the case, which is cofiled by Mark Eckenwiler, the associate director of the DOJ's Office of Enforcement Operations.

Federal prosecutors were even more blunt in an earlier cell-phone tracking dispute, although in ways that might hardly be reassuring to most cell-phone users.

"One who does not wish to disclose his movements to the government need not use a cellular telephone," the prosecutors wrote.